International law, Sixth edition
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International Law MALCOLM N. SHAW
The definition and delimitation of outer space
It soon became apparent that the usque ad coelum rule, providing for state sovereignty over territorial airspace to an unrestricted extent, was not viable where space exploration was concerned. To obtain the individual consents of countries to the passage of satellites and other vehicles orbiting more than 100 miles above their surface would prove cumbersome in the extreme and in practice states have acquiesced in such traversing. This means that the sovereignty of states over their airspace is limited in height at most to the point where the airspace meets space itself. Precisely where this boundary lies is difficult to say and will depend upon technological and other factors, but figures between 50 and 100 miles have been put forward. 308 As conventional aircraft are developed to attain greater heights, so states will wish to see their sovereignty extend to those heights and, as well as genuine uncertainty, this fear of surrendering what may prove to be in 306 Note the role played by the UN Committee on the Peaceful Uses of Outer Space established in 1958 and consisting currently of sixty-nine states. The Committee has a Legal Sub- Committee and a Scientific and Technical Sub-Committee: see, in particular, Christol, Modern International Law, pp. 13–20, and www.unoosa.org/oosa/COPUOS/copuos.html. 307 See e.g. Fawcett, Outer Space, chapter 7. 308 The UK has noted, for example, that, ‘for practical purposes the limit [between airspace and outer space] is considered to be as high as any aircraft can fly’, 70 BYIL, 1999, p. 520. 544 i n t e r nat i o na l l aw the future valuable sovereign rights has prevented any agreement on the delimitation of this particular frontier. 309 The regime of outer space Beyond the point separating air from space, states have agreed to apply the international law principles of res communis, so that no portion of outer space may be appropriated to the sovereignty of individual states. This was made clear in a number of General Assembly resolutions fol- lowing the advent of the satellite era in the late 1950s. For instance, UN General Assembly resolution 1962 (XVII), adopted in 1963 and entitled the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, lays down a series of applicable legal principles which include the provisions that outer space and celes- tial bodies were free for exploration and use by all states on a basis of equality and in accordance with international law, and that outer space and celestial bodies were not subject to national appropriation by any means. 310 In addition, the Declaration on International Co-operation in the Exploration and Use of Outer Space adopted in resolution 51/126, 1996, called for further international co-operation, with particular atten- tion being given to the benefit for and the interests of developing countries and countries with incipient space programmes stemming from such in- ternational co-operation conducted with countries with more advanced space capabilities. 311 Such resolutions constituted in many cases and in the circumstances expressions of state practice and opinio juris and were thus part of customary law. 312 309 See generally Christol, Modern International Law, chapter 10, and see also e.g. UKMIL, 64 BYIL, 1993, p. 689. A variety of suggestions have been put forward regarding the method of delimitation, ranging from the properties of the atmosphere to the lowest possible orbit of satellites. They appear to fall within either a spatial or a functional category: see Download 7.77 Mb. Do'stlaringiz bilan baham: |
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